Madhya Pradesh High Court
Rohit @ Kalu vs The State Of Madhya Pradesh on 10 October, 2018
1
HIGH COURT OF MADHYA PRADESH : BENCH AT INDORE
Rohit @ Kalu Vs. State of M.P.
M.Cr.C. No.40749 of 2018
M.Cr.C. No.40749 of 2018
Indore, Dated:- 10/10/2018
Shri Deepak Rawal, learned Counsel for the
petitioner--Rohit @ Kalu S/o Shri Kailash Yadav.
Shri Rakesh Maheshwari, learned Public
Prosecutor for the respondent/State.
Heard with the aid of case diary.
ORDER
1. This is 2nd/repeat application under Section 439 of the Cr.P.C. for grant of bail on behalf of petitioner-- Rohit @ Kalu in Crime No.307/2018 under Sections 34(2)A(2) of M.P. Excise Act, 1915 registered at Police Station--Kanadiya, District--Indore.
2. According to the prosecution case, the present petitioner has been impleaded in the array of accused for having 63 bulk litres of illegal country made liquor in his possession for which he was not having any license.
3. Earlier application was dismissed as withdrawn in the background of registration of 14 criminal cases including a case for the commission of similar offence against the petitioner.
4. After filing of the charge-sheet, this time the petitioner has come forward with the pleadings that in 2 HIGH COURT OF MADHYA PRADESH : BENCH AT INDORE Rohit @ Kalu Vs. State of M.P. M.Cr.C. No.40749 of 2018 this case, the intoxicant was recovered from an open place, Mukbir, Panchanama or any other documents to support contention of the Investigating Officer has not been prepared. Before the raid, provisions of Sections 52 and 57 of the Excise Act have not been complied with. The Police had made entry of seizure and recovery in Roznamcha Sana No.69 dated 19.7.2018 at 23.41 hours, while the FIR in which this Roznamcha number is mentioned is scribed at 23.35 hours which shows falsity of the prosecution case and, therefore, on merits, the petitioner has a good case.
5. Learned Counsel for the petitioner further submits that as per the provisions of Section 52 of the Excise Act the Officer, who had seized the liquor was not competent to do so.
6. Learned Counsel for the petitioner has also placed reliance in para 10 of the decision of Hon'ble the Supreme Court in the case Maulana Mohammed Amir Rashadi Versus State of Uttar Pradesh and another reported in (2012) 2 SCC 382.
7. Learned Public Prosecutor has objected the application stating that mentioning of Roznamcha number or discrepancy in the time of the FIR and the Roznamcha which both are scribed at the same Police Station at the same time is only a human error, 3 HIGH COURT OF MADHYA PRADESH : BENCH AT INDORE Rohit @ Kalu Vs. State of M.P. M.Cr.C. No.40749 of 2018 therefore, the petitioner who is having a long criminal record is not entitled for bail.
8. I have considered the rival contentions of the parties.
9. As per criminal record, following 14 criminal cases have been registered against the petitioner:-
Sr. No. Crime Nos. Sections Police Station 1 202/2.5.15 401, 25, 27 and 25-B Kanadiya 2 354/4.7.14 323, 294 and 506 Kanadiya 3 307/18 34(2) Excise Act Kanadiya 4 417/28.7.10 307, 294, 34 IPC Malharganj 5 514/12 24.6.12 324, 147, 148, 324, Palasia 323, 294, 506 IPC and Section 25 of Arms Act 6 26/15 160 IPC Palasia 7 25, 27 Arms Act and Banganga Section 336 of IPC 8 75/17 302/147, 148, 149, 34 Dawarkapu of IPC ri 9 630/14 25 Arms Act Khajrana 10 317/16 25 Arms Act Khajrana 11 481/12 307 IPC, Section 25, 27 Annapurna Arms Act 12 140/13 294/427 IPC Annapurna 13 637/13 294, 232, 452, 506, 34 Annapurna IPC 14 546/08 34 of Excise Act MIG
10. In this case also as per FIR, the police received an information and raided a place, the accused was found sitting on two plastic bags. He was cordoned and apprehended by the police. Three and four cartoons in two separate bags, containing total 350 quarters of country made plain liquor were recovered from his 4 HIGH COURT OF MADHYA PRADESH : BENCH AT INDORE Rohit @ Kalu Vs. State of M.P. M.Cr.C. No.40749 of 2018 possession.
11. In the judgment of Maulana Mohammad Amir Rashadi (supra) the Hon'ble Supreme Court has observed that not only the criminal record but merits of the case has to be considered while deciding the prayer for bail. In this case also, I have considered the merits in the backdrop of criminal record so also the provisions of Section 59-A of the Excise Act, therefore, no conclusion can be drawn in favour of the petitioner on the basis of this judgment.
12. Considering the evidence available against the petitioner in totality and the arguments advanced by the learned counsel for the petitioner and other facts and circumstances of the case, I am not inclined to allow the application, therefore, the same is dismissed.
(Virender Singh) Judge pp/ Digitally signed by Pankaj Pandey Date: 2018.10.24 12:03:54 +05'30'